Rachel Ybarra v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-1435

RACHEL YBARRA, as Special Administrator of the Estate of

RAFAEL CRUZ, deceased,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16-cv-08009 — Virginia M. Kendall, Judge.

____________________

ARGUED DECEMBER 4, 2019 — DECIDED JANUARY 3, 2020

____________________

Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Rachel Ybarra brought a lawsuit

against the City of Chicago and Chicago Police Department

Commander Francis Valadez and Officer Monica Reyes for

excessive force and wrongful death based on the shooting

death of her son, Rafael Cruz. The district court entered sum-

mary judgment for the defendants, holding that the officers

could have reasonably believed, based on Cruz’s involvement

2 No. 19-1435

in a drive-by shooting and extremely reckless driving, that

Cruz posed an imminent threat to others if allowed to escape

from the parking lot where they shot him.

We affirm. Under the circumstances present in this case,

the officers had probable cause to believe that Cruz posed a

threat of serious physical harm to others in the immediate vi-

cinity. It was therefore not unreasonable for the officers to pre-

vent Cruz’s escape by using deadly force.

I. Background

During the early hours of August 29, 2015, Chicago Police

Department Commander Francis Valadez and Officer Monica

Reyes (collectively, “the officers”) were in an unmarked po-

lice car patrolling a neighborhood where a gang-related

shooting had recently occurred. At approximately 1:30 a.m.,

the officers saw a rear passenger in Rafael Cruz’s Chevy Ta-

hoe fire five gunshots at the occupants of another car. Imme-

diately after the shooting, Cruz drove away, reaching speeds

of 40 to 70 miles per hour in a 30-miles-per-hour zone. Reyes

called in an emergency, reporting “shots fired” over the police

radio. Valadez was driving and followed Cruz’s Tahoe, which

had dark, tinted windows. The officers followed Cruz’s Tahoe

through city streets for approximately one mile but did not

activate any emergency lights or sirens on their vehicle.

With the unmarked police car still following him, Cruz

turned westbound and struck a parked car on the north side

of the street with enough force that it pushed the car forward

into a second car parked roughly a car-length in front of it,

causing the second car to roll into a third. Despite that colli-

sion, Cruz kept driving before crashing into a fourth car on

No. 19-1435 3

the south side of the street and coming to a stop near the en-

trance of a parking lot.

At that point, the officers parked their car behind Cruz’s

Tahoe, believing that it had stalled due to the damage it had

sustained during the collisions. Valadez then began getting

out of the car while announcing that he was a police officer.

Almost simultaneously, Cruz put his Tahoe into reverse, forc-

ing Valadez back into his car just before the back of the Tahoe

struck the driver’s side of the car. The collision forced the

open driver’s side door closed and caused the officers’ “whole

car” to “rock[].” Reyes thought that Valadez had been hit by

the Tahoe and was concerned that he may have been severely

injured in the seconds following the collision. Cruz then

pulled forward and turned left into the parking lot.

The officers followed Cruz into the parking lot on foot,

wearing plain clothes, duty belts, and bulletproof police vests

that displayed their police star. Valadez ran to the south side

of the parking lot, while Reyes positioned herself behind a

parked car near the parking lot’s entrance. Valadez testified

that he shouted “police” while running into the parking lot.

The parking lot was “pretty well lit” by lights in the lot and at

the adjacent intersection. One of Cruz’s passengers, Pasqual

Nava, testified that he knew that Valadez was a police officer

because he could see Valadez’s vest. Reyes also yelled several

times to “stop the vehicle” and “stop it.” Two of Cruz’s pas-

sengers, Jose Cabello and Pasqual Nava, did not hear Valadez

or Reyes say anything.

Cruz did not stop and instead made a three-point turn

back toward the parking lot’s entrance, which was the only

path for vehicles to enter or exit the parking lot. The head-

lights of Cruz’s Tahoe shone directly at Valadez and then at

4 No. 19-1435

Reyes as Cruz completed his three-point turn and pulled for-

ward. Valadez initially stated that as the Tahoe began driving

forward, he saw the driver’s window being lowered two to

three inches and believed that Cruz was about to begin shoot-

ing at him. Video footage, however, showed that the window

may have already been rolled down before Cruz’s Tahoe en-

tered the parking lot.

As Cruz began driving forward, Valadez fired three shots

at Cruz, and Reyes immediately thereafter fired five addi-

tional shots at him. The officers continued shooting after the

Tahoe had driven past Reyes. Reyes testified that she could

see Cruz’s profile as he drove past her. Reyes called out over

the radio, “Shots fired by police, shots fired by police.” Cruz

died as a result of a gunshot wound.

Approximately ninety seconds elapsed from the time the

initial shots were fired from Cruz’s Tahoe until Cruz was

shot, roughly sixteen of which elapsed during the encounter

in the parking lot. Surveillance footage shows that pedestri-

ans, cyclists, and other vehicles were in the area within twenty

minutes of the incident.

Ybarra, Cruz’s mother and administrator for his estate,

filed suit, bringing claims against the officers for excessive

force under 42 U.S.C. § 1983 and against the officers and the

City of Chicago for wrongful death under Illinois law. The

district court entered summary judgment for the defendants,

holding that although there was a fact dispute as to whether

the officers had acted reasonably in self-defense, they had

acted reasonably in using deadly force against Cruz to protect

others in the immediate vicinity by preventing his escape.

Ybarra now appeals.

No. 19-1435 5

II. Discussion

Construing all factual disputes and drawing all reasonable

inferences in favor of Ybarra, we review de novo the district

court’s entry of summary judgment for the defendants. Palmer

v. Franz, 928 F.3d 560, 563 (7th Cir. 2019). The defendants are

entitled to summary judgment only if they have shown “that

there is no genuine dispute as to any material fact” and that

they are “entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).

We conclude that the officers’ use of deadly force against

Cruz was an objectively reasonable means to prevent the es-

cape of armed and dangerous suspects who were driving

with reckless disregard for the safety of others after firing

gunshots at the occupants of another car moments earlier. “A

police officer’s use of deadly force on a suspect is a seizure

within the meaning of the Fourth Amendment, so the force

must be reasonable to be constitutional.” Horton v. Pobjecky,

883 F.3d 941, 948 (7th Cir. 2018). A suspect has a constitutional

right not to be shot by an officer unless the officer “reasonably

believes that the suspect poses a threat to the officer or some-

one else.” Id. at 949 (citation and brackets omitted).

When an officer reasonably believes an assail-

ant’s actions place him, his partner, or those in

the immediate vicinity in imminent danger of

death or serious bodily injury, the officer can

reasonably exercise the use of deadly force. An

officer does not violate the Fourth Amendment

by firing at a suspect when the officer reasona-

bly believed that the suspect had committed a

felony involving the threat of deadly force, was

armed with a deadly weapon, and was likely to

6 No. 19-1435

pose a danger of serious harm to others if not

immediately apprehended.

Id. (internal quotation marks and citations omitted). Under

some circumstances, a police officer may therefore use deadly

force as a reasonable means to prevent a suspect’s escape.

Where the officer has probable cause to believe

that the suspect poses a threat of serious physi-

cal harm, either to the officer or to others, it is

not constitutionally unreasonable to prevent es-

cape by using deadly force. Thus, if the suspect

threatens the officer with a weapon or there is

probable cause to believe that he has committed

a crime involving the infliction or threatened in-

fliction of serious physical harm, deadly force

may be used if necessary to prevent escape, and

if, where feasible, some warning has been given.

Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11–12 (1985).

Application of the reasonableness test “requires careful at-

tention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the sus-

pect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempt-

ing to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,

396 (1989). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.”

Id. “The calculus of reasonableness must embody allowance

for the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense, uncer-

tain, and rapidly evolving—about the amount of force that is

No. 19-1435 7

necessary in a particular situation.” Id. at 396–97; see also Hor-

ton, 883 F.3d at 950 (reasonableness test requires considering

“the pressures of time and duress, and the need to make split-

second decisions under intense, dangerous, uncertain, and

rapidly changing circumstances”). Unlike the court, the offic-

ers “lacked [the] luxury of pausing, rewinding, and playing

the videos [of the incident] over and over.” Horton, 883 F.3d

at 950.

“[O]utrageously reckless driving” that “pose[s] a grave

public safety risk” can be enough to justify the use of deadly

force under some circumstances. Plumhoff v. Rickard, 572 U.S.

765, 777 (2014) (reversing denial of summary judgment for of-

ficers who shot at fleeing suspect to end car chase); see also

Scott v. Edinburg, 346 F.3d 752, 758–61 (7th Cir. 2003) (affirm-

ing summary judgment for defendants where officer shot at

fleeing suspect who had stolen car and put others in vicinity

at risk through dangerous driving). Here, there was more

than Cruz’s extremely reckless driving to support the officers’

conclusion that Cruz presented a grave public safety risk.

Cruz was not merely an impaired driver or someone driv-

ing away from a traffic ticket. After someone in his Tahoe

fired multiple shots at another vehicle, Cruz sped away

through city streets at roughly twice the speed limit, driving

for a mile before crashing into multiple cars. First, he careened

into a parked car with such force that it pushed the car for-

ward into a second car parked a full car-length in front of it,

which then rolled into a third. Despite the severity of that in-

itial collision, Cruz did not stop. Cruz kept driving and

crashed into a fourth car parked on the opposite side of the

street. Then, when Valadez parked behind Cruz’s Tahoe,

Cruz drove backward directly into the same car door from

8 No. 19-1435

which Valadez was attempting to exit. Cruz’s Tahoe crashed

into the unmarked police car with enough force that it

slammed Valadez’s door shut, caused the “whole car” to

“rock[],” and led Reyes to believe that Valadez may have been

seriously injured.

During the encounter in the parking lot moments later, the

officers reasonably believed that there was still at least one

gun in Cruz’s Tahoe, that Cruz could access it, and that all of

the suspects in the Tahoe might have been armed and danger-

ous. Cf. Horton, 883 F.3d at 952 (holding that officer reasona-

bly assumed decedent was armed because of decedent’s par-

ticipation in armed robbery). The situation was particularly

difficult given that the officers could not see into the Tahoe to

determine which occupant had the gun because the Tahoe

had dark, tinted windows. Cf. Ford v. Childers, 855 F.2d 1271,

1275 (7th Cir. 1988) (“Even though [the officer] did not actu-

ally see a weapon in the suspect’s hand (a post obstructed his

view of the suspect’s hand), given the information he pos-

sessed at that particular time and the observations he made,

[the officer] reasonably concluded that the suspect was armed

and dangerous.”). Moreover, only sixteen seconds elapsed

from when Valadez entered the parking lot (with Reyes trail-

ing by a few seconds) until the Tahoe exited the parking lot,

at which time Cruz had already been shot. Within that six-

teen-second window, the officers had mere seconds to deter-

mine how to respond, and that determination was informed

by the violent acts the officers had witnessed less than ninety

seconds previously.

Furthermore, it was reasonable for the officers to conclude

that Cruz would have known that they were police officers

rather than members of a rival gang. The officers entered the

No. 19-1435 9

parking lot, which was “pretty well lit” by lights in the park-

ing lot and at the adjacent intersection, wearing duty belts and

bulletproof vests that had their police star displayed on them.

Both officers had also been illuminated by Cruz’s headlights.

Indeed, Nava testified that he knew Valadez was a police of-

ficer because he could see his vest. Moreover, Valadez’s testi-

mony that he identified himself as a police officer when he

initially got out of his car (before it was struck by Cruz’s Ta-

hoe) is unrebutted.

The law requires that before using deadly force to prevent

escape, the officers must, “where feasible,” give “some warn-

ing.” Horton, 883 F.3d at 949 (quoting Garner, 471 U.S. at 11–

12). The undisputed facts show that such a warning was given

here. Nava testified that he was looking at Valadez immedi-

ately before Valadez began shooting, but that he never saw

Valadez’s mouth move and that Valadez “never said ‘stop,’

never said nothing.” Regardless of whether Valadez yelled to

“stop,” however, Reyes can be heard yelling at Cruz to “stop

the vehicle” in the audio recorded by her police radio. There

is no requirement that every officer on a scene shout duplica-

tive commands. To the extent that the passengers in Cruz’s

Tahoe could not hear the warnings, their testimony that they

“did not hear any warnings fails to present a question of ma-

terial fact as to whether the giving of the warnings was feasi-

ble and if in fact they were given.” Ford, 855 F.2d at 1276.

Thus, when Cruz failed to stop after Reyes yelled at him

to “stop the vehicle” but instead continued driving in Reyes’s

general direction toward the parking lot exit, the officers had

probable cause, based on Cruz’s involvement in the drive-by

shooting and his extremely reckless driving, to believe that

Cruz presented a threat of serious physical harm to others if

10 No. 19-1435

not immediately apprehended. Even though the encounter

occurred during the very early hours of the morning, surveil-

lance footage shows other pedestrians, cyclists, and motorists

in the area around the time of the shooting.

Regardless of whether the officers reasonably believed

that Cruz presented a direct threat to the officers’ own

safety—whether by driving toward or shooting at them—

there is no genuine dispute of material fact that the officers

acted reasonably in using deadly force against Cruz to pre-

vent his escape to protect others in the immediate vicinity. See

Scott, 346 F.3d at 759 (“[T]he threatened individuals need not

have been placed in the direct path of the threat. Deadly force

may be exercised if the suspect’s actions place the officer, his

partner, or those in the immediate vicinity in imminent danger

of death or serious bodily injury.” (citation and internal quo-

tation marks omitted)). Their use of deadly force to prevent

escape continued to be reasonable even as Cruz drove past

the officers. Cf. Horton, 883 F.3d at 952 (“Even if [a participant

in an armed robbery] had already crawled past [the officer], it

was still reasonable for [the officer] to shoot him in the back

to prevent escape.”).

For the same reasons that the officers’ use of deadly force

was not an unreasonable seizure under the Fourth Amend-

ment, their use of deadly force was justified under Illinois

law. See Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th

Cir. 2002) (“The same [reasonable use of deadly force] rule

applies to [plaintiff’s] wrongful death claim under Illinois

No. 19-1435 11

law.”).1 And under 745 Ill. Comp. Stat. 10/2-109, the City can-

not be held vicariously liable when its individual officers are

not liable. The defendants are therefore entitled to summary

judgment on both the § 1983 claim and the wrongful death

claim under Illinois law.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.

1Under 720 Ill. Comp. Stat. 5/7-5, an officer is justified in the use of

deadly force in Illinois if:

[H]e reasonably believes that such force is necessary to

prevent death or great bodily harm to himself or such

other person, or when he reasonably believes both that:

(1) Such force is necessary to prevent the arrest

from being defeated by resistance or escape;

and

(2) The person to be arrested has committed or

attempted a forcible felony which involves

the infliction or threatened infliction of great

bodily harm or is attempting to escape by use

of a deadly weapon, or otherwise indicates

that he will endanger human life or inflict

great bodily harm unless arrested without

delay.

Moreover, the Illinois Tort Immunity Act provides that a “public em-

ployee is not liable for his act or omission in the execution or enforcement

of any law unless such act or omission constitutes willful and wanton con-

duct.” 745 Ill. Comp. Stat. 10/2-202. For the same reasons that the officers’

use of deadly force was reasonable as a matter of law, a jury could not

conclude that their use of deadly force was willful and wanton.

12 No. 19-1435

HAMILTON, Circuit Judge, concurring in the judgment. I

would affirm summary judgment on the narrower ground of

qualified immunity on plaintiff’s Fourth Amendment claim.

In briefing in this court, plaintiff effectively conceded that

qualified immunity is appropriate. She described this case as

straddling the “hazy border” between reasonable and unrea-

sonable force. Appellant’s Reply Br. at 6. I agree, and we could

and should stop there. See generally Pearson v. Callahan, 555

U.S. 223, 241 (2009), citing among others Ashwander v. TVA,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring). I would not

make my colleagues’ further finding that the officers did not

violate the Fourth Amendment, particularly in light of the of-

ficers’ use of deadly force while driving an unmarked vehicle

and wearing plain clothes.

Driving the Tahoe when his passenger fired shots at an-

other car, Cruz then fled recklessly from the shooting and

from another car, the unmarked police car, that was chasing

him at night. Under Tennessee v. Garner, 471 U.S. 1, 11–12

(1985), the Fourth Amendment generally permits police to use

deadly force to prevent the escape of a suspect fleeing from

such a violent crime, with the proviso that a warning should

be given “if feasible.” We expect officers if feasible to give ci-

vilians a choice between surrender and death.

The extensive case law concerning police use of force, and

especially deadly force in police chases, almost always in-

volves uniformed police officers and clearly marked police

vehicles. Courts expect civilians to comply with police com-

mands and warnings and to respect the authority of the po-

lice. Those expectations do not necessarily apply to police of-

ficers who are out of uniform in unmarked vehicles, however

effective those tactics may be for particular police purposes.

No. 19-1435 13

The officers here were in plain clothes, not in uniform, and

they were driving an unmarked car. Never in the ninety-sec-

ond episode did the officers use the car’s hidden emergency

lights or sirens. In reviewing a grant of summary judgment,

we cannot assume Cruz knew he was being pursued by police

officers during the chase or even during the fatal confronta-

tion in the church parking lot. One passenger in Cruz’s car

recognized from their gear that the people on foot in the park-

ing lot were in fact police officers. Cruz and others may not

have. The evidence of shouted warnings did not show beyond

reasonable dispute that the officers could reasonably have ex-

pected the Tahoe’s driver to have heard them.

We explained in Doornbos v. City of Chicago, 868 F.3d 572,

585 (7th Cir. 2017), that with only rare exceptions, plainclothes

officers may not initiate Fourth Amendment seizures without

identifying themselves as police: “many civilians who would

peaceably comply with a police officer’s order will under-

standably be ready to resist or flee when accosted—let alone

grabbed—by an unidentified person who is not in a police of-

ficer’s uniform.” In Doornbos, we also summarized the special

dangers posed by the use of force by plainclothes officers as

reported in the U.S. Department of Justice’s investigations of

the police departments in Chicago and other cities, highlight-

ing Chicago’s “aggressive plainclothes policing practices that

result in needless injuries.” Id. at 586–88 & n.4. There have

been too many tragedies around the nation in which police

officers have used deadly force against their own colleagues

in plain clothes, often officers of color, in circumstances that

14 No. 19-1435

were “tense, uncertain, and rapidly evolving,” to quote Gra-

ham v. Connor, 490 U.S. 386, 396 (1989).1

1 One study sponsored by the National Law Enforcement Officers Me-

morial Fund and the Department of Justice identified 105 cases of inten-

tional but mistaken shootings of officers by other officers, “many times”

involving the intervention of plainclothes or off-duty officers. Nick Breul

& Desiree Luongo, Making It Safer 64–66 (2017),

https://cops.usdoj.gov/RIC/Publications/cops-w0858-pub.pdf. A New

York state task force addressed the “special fear” experienced by officers

of color encountering white officers while “out of uniform—off-duty, un-

dercover, or in plainclothes.” Reducing Inherent Danger 1, N.Y. State Task

Force on Police-on-Police Shootings (2010), https://www.hks.har-

vard.edu/sites/default/files/centers/wiener/programs/pcj/files/Police-on-

Police_Shootings_with_appendices.pdf. See also, e.g., Michael Wilson, Ali

Watkins & Ali Winston, “Friendly Fire” Killing of Detective: 42 Shots, 7 Of-

ficers, 11 Seconds, N.Y. Times (Feb. 13, 2019), https://www.ny-

times.com/2019/02/13/nyregion/nypd-cop-killed.html; WWJ, Detroit Cops

Fight Each Other in “Embarrassing” Undercover Mix-Up, CBS Detroit (Nov.

13, 2017), https://detroit.cbslocal.com/2017/11/13/detroit-police-under-

cover-mix-up; Associated Press, Black St. Louis Police Officer Shot by White

Colleague “Fearing for His Safety”, The Guardian (June 24, 2017),

https://www.theguardian.com/us-news/2017/jun/24/black-st-louis-police-

officer-shot-white-colleague; Matt Howerton, Cop Who Shot Fellow Officer:

I Didn’t Know It Was You, KOAT (Apr. 1, 2016), https://www.koat.com/ar-

ticle/cop-who-shot-fellow-officer-i-didn-t-know-it-was-you/5070698; Me-

ghan Keneally & Emily Shapiro, Maryland Cop Mistook Plainclothes Officer

as “Threat” During Fatal Shooting, ABC News (Mar. 16, 2016),

https://abcnews.go.com/US/maryland-cop-mistook-plainclothes-officer-

threat-fatal-shooting/story?id=37699834; CBS & AP, Report Finds BART

Cop Accidentally Shot, Killed Fellow Officer on Duty, CBS San Francisco (May

30, 2014), https://sanfrancisco.cbslocal.com/2014/05/30/report-finds-bart-

cop-accidentally-shot-killed-fellow-officer-on-duty; Ann Mercogliano &

Alice McQuillan, MTA Officer Who Shot Nassau Cop Is “Devastated”, NBC

N.Y. (Mar. 12, 2011), https://www.nbcnewyork.com/news/local/nassau-

county-police-officer-killed/1939873.

No. 19-1435 15

Nevertheless, despite some factual disputes bearing on the

ultimate reasonableness of the officers’ actions in this case, I

would affirm summary judgment for the officers based on the

doctrine of qualified immunity. As noted, plaintiff concedes

that the officers’ conduct falls somewhere on the “hazy” bor-

derline separating excessive and appropriate force. See Sauc-

ier v. Katz, 533 U.S. 194, 206 (2001), abrogated in nonrelevant

part by Pearson, 555 U.S. at 227. And even if that were not so,

plaintiff’s briefs failed to identify “a body of relevant case

law” rendering the officers’ conduct clearly unconstitutional

on the facts construed most favorably to her, and failed as

well to persuade that this is an “obvious” case controlled di-

rectly by Garner and Graham. See Brosseau v. Haugen, 543 U.S.

194, 199 (2004). We should take the more conservative deci-

sional route here by limiting our holding to the qualified im-

munity defense.